Ajay Kumar Bains Vs SHO Sadar Una and Others

Una, H.P. (learned Trial Court) vide which the learned Trial Court treated the application filed under Section 156 (3) Code of Criminal Procedure (Cr.P.C) as a private complaint. ( The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenienc e).

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Briefly stated, the facts giving rise to the present petition are that a complainant filed a complaint before the learned Trial Court under Section 156 (3) of Cr.P.C. for the registration of the F.I.R regarding the illegal transfer of the vehicle. The Learned Trial Court called for the report of the police and treated the complaint as a private complaint.

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Being aggrieved by the order passed by the learned Trial Court, the complainant has filed the present petition asserting that the learned Trial Court erred in treating the complaint as a private complaint. The matter could have been investigated by the police, but the learned Trial Court shifted the burden upon the complainant to prove the complaint. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

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I have heard Mr Athrav Sharma, learned counsel

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for the petitioner and Mr Jitender K. Sharma, and learned Additional Advocate General, for respondent No.1 / State.

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Mr Ahtrav Sharma, learned counsel for the petitioner, submitted that the learned Trial Court had no jurisdiction to treat the application filed under Section 156(3) of Cr.P.C. as a private complaint. The police could have easily investigated the matter, and the burden was wrongly shifted to the complainant; hence, he prayed that the present petition be allowed and the order passed by the learned trial Court be set aside. He relied upon the judgment of Hon’ble Supreme Court in Priyanka Srivastava & Anr vs State of U.P.& Ors 2015 (6) SCC 287 in support of his submission.

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Mr Jitender Sharma, learned Additional Advocate General for respondent No.1/State submitted that the learned

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Trial Court had the discretion to refer the matter to the police or to treat it as a private complaint. There is no infirmity in the order passed by the learned trial Court. Hence, he prayed that the present petition be dismissed.

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7. I have given a considerable thought to the

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submissions. The bar and have gone through the records carefully.

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Section 156(3) of the Cr.P.C. provides that any Magistrate empowered under Section 190 may order such investigation as above mentioned. The legislature has consciously used the word ‘may’ suggesting that the Magistrate has a discretion to order the investigation or to take cognisance of the commission of the offence. It was laid down by the Allahabad High Court in Sukhwasi v. State of U.P., 2007 SCC OnLine All 2637 that the magistrate is not bound to refer the application under Section 156 (3) of CrPC to the police for the registration of the FIR. It was observed:

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“9. The use of the word ‘Shall’ in Section 154(3) Cr. P.C. and the use of the word ‘May’ in Section 156(3) Cr. P.C. should make the intention of the legislation clear. If the legislature intended to close options for the Magistrate, they could have used the word ‘Shall’ as has been done in Section 154(3) Cr. P.C. Instead, the use of the word ‘May’ is, therefore, very significant, and gives a very clear indication that the Magistrate has discretion in the matter, and can, in appropriate cases, refuse to order registration.

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10. In the case of State of West Bengal v. Union of India, AIR 1963 SC 1241 it was observed by the Supreme Court that the intention of the legislature

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can best be ascertained “by directing its attention not merely to the clauses construed, but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs”.

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11. Let us take an example to make things clear. If somebody wants to file a First Information Report, the District Judge of the concerned District came to his house at 1.20 O'clock in the day, and fired upon him with the country-made pistol, and he ducked and escaped being hurt, and the District Judge, therefore, is liable for an offence under Section 307 Penal Code, 1860. The Magistrate knows that the District Judge was in his courtroom at that time, and the concerned staff also knows that. Is the Magistrate still bound to order registration of a First Information Report because the application discloses a cognizable offence? It is obvious that the answer has to be in negative, and it cannot, therefore, be said that the Magistrate is bound to order registration of a First Information Report in all cases, where a cognizable offence is disclosed.”

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Delhi High Court also took a similar view in Anjuri

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Kumari v. State (NCT of Delhi), 2023 SCC OnLine Del 7570 and

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observed:

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“17. In view of the discussions mentioned hereinabove, I am of the view that the directions for investigation under section 156 (3) of the Code cannot be given by the Magistrate mechanically. Such a direction can be given only on the application of the mind by the Magistrate. The Magistrate is not bound to direct investigation by the police even if all allegations made in the complaint disclose ingredients of a cognizable offence. Each case has to be viewed depending on the facts and circumstances

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involved therein. In the facts and circumstances of a given case, the Magistrate may take a decision that the complainant can prove the facts alleged in the complaint without the assistance of the police. In such cases, the Magistrate may proceed with the complaint under Section 200 of the Code and examine witnesses produced by the complainant. The Magistrate ought to direct an investigation by the police if the evidence is required to be collected with the assistance of the police. In the present case, all the facts and evidence are within the knowledge of the petitioner, which he can adduce during the inquiry conducted by the learned Metropolitan Magistrate under Section 200 of the Code.”

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10 Bombay High Court also took a similar view in X Y

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Z vs. Anthony Joseph Michal and Ors. (05.04.2023 - BOMHC): MANU/MH/1385/2023 and held:

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“12. It is, therefore, crystal clear that the Magistrate or the Court concerned has discretion while considering the application under Section 156(3) of the Cr. P.C. It is to be noted that there cannot be any straitjacket formula in such matters. The Court has to exercise the direction bearing in mind the facts and circumstances of each and every case. The facts and circumstances brought on record and consideration of the same deserve primacy while exercising discretion. It is to be noted that in this case, I am not persuaded to accept the submission that the learned Judge has exercised his power arbitrarily and the discretion was not guided by judicial reason. It is to be noted that the learned Judge, bearing in mind the civil dispute pending between the parties, thought it appropriate to direct the police to conduct the preliminary enquiry. It is true that the allegations made in the application are serious. It is to be noted that the serious allegations may disclose the

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commission of a cognizable offence. However, it does not mean that the Court cannot direct the police to conduct the enquiry and to submit a report for the purpose of deciding the matter in accordance with the law….”

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Madhya Pradesh High Court also took a similar

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view in Om Prakash Sharma v. State of M.P. , 2021 SCC OnLine MP 630 .

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Therefore, the Magistrate is not bound to send the complaint to the police for the registration of the FIR, and if he decides not to send the complaint to the police, he has the option to take cognisance and call upon the complainant to produce the evidence.

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Even if the complaint is sent to the police for the registration of the FIR, the police will conduct the investigation and submit the report before the Magistrate. The Magistrate will thereafter take cognisance and proceed further with the matter. Hence, ultimately, the proceedings have to be conducted before the learned Magistrate. If the learned Magistrate believes that his time would not be wasted by taking cognisance, the whole process of sending the complaint to the police and, thereafter, asking the police to carry out the investigation and submit the report before

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the Police would be saved. This would ensure speedy justice to the party, and no fault can be found with the course adopted by the learned Magistrate.

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Priyanka Srivastava (supra) dealt with the

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jurisdiction of the learned Magistrate to pass an order under Section 156(3) of the Cr.P.C., which is undisputed, and the cited judgment will not help the petitioner.

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15. No other point was urged.

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In view of the above, the present petition fails, and it is dismissed, so also the pending application(s), if any.

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The observations made hereinbefore shall remain

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confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case.

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(Rakesh Kainthla) Judge

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22^nd June, 2026. (ravinder)

Ajay Kumar Bains v. SHO Sadar Una and Others

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Ajay Kumar Bains v. SHO Sadar Una and Others

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